Sen. Sherrod Brown, D-Ohio, enlisted McDonald’s in his voter registration efforts when he was Ohio’s secretary of state. He is arguing that the high court should reject the state’s efforts to purge voters from the registration rolls. (Tom Williams/CQ Roll Call file photo)

The Supreme Court hears oral arguments Wednesday about Ohio’s effort to remove voters from its registration rolls, and some members of Congress have told the justices that the Buckeye State’s process violates federal laws meant to protect voters.

Ohio Sen. Sherrod Brown, a Democrat, and members of the Congressional Black Caucus filed separate briefs in the case siding with groups that challenged Ohio’s law. The state’s “supplemental process” uses a list of people who haven’t voted in recent elections to trigger steps that could remove them from the voter rolls.

What the Supreme Court decides by the end of the term in June could determine if that process violates a 1993 law, known as the “motor voter” law, and a 2002 statute called the Help America Vote Act that made improvements to the nation’s voting systems following the 2000 election problems in Florida.

More than a dozen states have laws similar to Ohio’s to help maintain accurate voter registration lists, as required under those same federal laws.

The decision might affect 2018 elections in those states, most directly in the swing state of Ohio that played a key role in the 2016 election and re-elected Sen. Rob Portman to help Republicans maintain control of the Senate. Brown is on the ballot in 2018 as well, and Democrats see an opportunity to gain the Senate majority.

Brown, to bolster his bona fides for the justices, highlighted his work on federal laws as well as his stint as Ohio’s secretary of state in the 1980s, when even condiments couldn’t slow down his voter-registration efforts.

“I even asked McDonald’s to print voter-registration forms on the back of their tray liners,” Brown told the justices, and the fast food chain complied. “As a result, some voters submitted registration cards with ketchup and mustard on them — and we accepted them.”

Brown wrote that the federal laws require states to first receive reliable evidence that a voter has moved outside the jurisdiction and then use a statutory notice to confirm the move occurred.

“Citizens have the right not to vote for any reason, and states cannot penalize them for doing so by canceling their registrations,” Brown wrote. “Ohio’s Supplemental Program does exactly that because it uses registered voters’ failure to vote as the trigger to subject them to the change-of-residence confirmation process.”

The U.S. Court of Appeals for the 6th Circuit sided with the challengers and issued an order during the 2016 election. More than 7,500 eligible Ohioans would have gone uncounted in the 2016 election because Ohio’s supplemental process wrongly identified them as having moved out of the jurisdiction, Brown wrote.

Laws in place

The members of the Congressional Black Caucus, all Democrats, who signed on to the brief bolstered their argument by pointing out that African-Americans fought and died for access to the ballot and that the lawmakers were involved with passing the federal laws in 1993 and 2002.

The CBC members said lawmakers “have acknowledged” that the 1993 law, titled the National Voter Registration Act, does not permit states to target non-voters for confirmation mailings, because they unsuccessfully sought to amend it both before and after the passage of the 2002 law.

Among those efforts, they cite a bill introduced by former Sen. John W. Warner and Rep. Robert W. Goodlatte, both Republicans from Virginia, that would have amended the motor voter law “including to permit the very practice that Ohio adopted in the ‘Supplemental Procedure.’”

“Each of these unsuccessful attempts to amend the NVRA to permit the targeting of non-voters for registration purges confirms that the NVRA as originally enacted prohibited the practice, and that HAVA did not surreptitiously modify the NVRA to permit it,” the lawmakers wrote.

The Justice Department for years interpreted the laws to prohibit the Ohio tactic, and even sided with the challengers in this case when it was before the 6th Circuit.

However, the DOJ under President Donald Trump flipped positions on this case, as it has in several others. The department filed a brief in August with the Supreme Court supporting the state law, stating it had “reconsidered the question” after the “change in Administration.”

Legal experts have said the justices could have questions about the reasons for such a turnabout on the positions of the United States. The Supreme Court has often taken a longer view on issues and sought to protect the nation’s institutional interests beyond just one president.